A South Dakota Supreme Court decision said one interracial couple’s divorce in tribal court is not valid.
A state Supreme Court case balances if a tribal court has jurisdiction in a divorce claim between a Native woman and a non-Native man.
The key point of contention comes from a 1986 law that outlines when state courts can recognize order or judgement from a tribal court.
The law says that tribal court orders and judgements can only be recognized by state courts if “The tribal court had jurisdiction over both the subject matter and the parties” involved.
Terri Torgerson is an enrolled member of the Sisseton-Wahpeton Oyate. She filed for divorce through the SWO tribal court.
Leslie (Les) Torgerson is a non-Native man and not a member of the tribe. He sought divorce in state court.
Both parties asked state Circuit Judge Jon Flemmer to dismiss the other’s preceding. Judge Flemmer ultimately dismissed the preceding in the state court – saying the tribal court’s order was valid.
Les appealed the dismissal to the state Supreme Court – claiming the tribal proceeding lacked jurisdiction over him.
Thomas Wilka was Les Torgerson’s attorney in the Supreme Court Case. He said Terri Torgerson’s attorney fails to meet the standards required for Les to be considered the tribal court’s jurisdiction.
“Les and Terri Torgerson during the entire marriage never once lived on the reservation land. They lived in Sisseton. They were married in Vermillion. And I think that is another basis for finding no jurisdiction because Les Torgerson did not have sufficient minimum contact with the tribes for the tribe to exercise any jurisdiction over him. There’s a piece of evidence that says ‘well, they conducted a business on the reservation.’ That business was dissolved 20 years ago,” Welch said.
The state Supreme Court justices make the distinction that the case’s debate is less about marital status – and more about how to divide land and assets.
Wilka said due to the Circuit Court’s decision – a divorce trial was held in tribal court. Les was absent with only his attorney present because appearing would have waived his jurisdictional issue.
“Les Torgerson did not participate. He was not even present in Agency Village that day. And the tribal judge proceeded to divide the property – including property in Montana. None of the property was on the reservation, but she divided it anyway. And, if you read the divorce findings of fact and conclusion of law, it is a totally unfair division of property. That would not pass muster in a South Dakota Circuit Court as an equitable division of property under any circumstances,” Wilka said.
Gordon Nielsen was the attorney for Terri Torgerson. He points to a 2005 case Wells v. Wells. That case held the circuit court had jurisdiction over two Native American Indians living on Native land to declare a decree of divorce - and nothing more - between a husband and wife.
“Judge Flemmer didn’t need to recognize the tribal court because the tribal court first obtained jurisdiction under concurrent jurisdiction. And my argument is, if the court, and I know you have, but read through the 2005 Wells v. Wells case. It’s the same case, just with inverse parties. Meaning, here we have a non-tribal member saying the tribal court didn’t have jurisdiction,” Nielsen said.
He also argued that Wilka and Les’s assertion of the 1986 law is incorrect.
"On the hearing under the Circuit Court judge on the motion to dismiss, the only issue was whether the divorce should be heard in state court or tribal court. There is no request under 1-1-25 (the 1986 law) where a Circuit Court judge could recognize a tribal court order,” Nielsen said.
Ultimately – the Supreme Court decides that Judge Flemmer erred in his decision and did not follow the correct review of the 1986 law.
Justice Janine Kern wrote the opinion – saying the circuit court failed to conduct a proper analysis. She cited that SWO tribal code outlines its jurisdiction to “divorces of the members of the” tribe and other Indian tribes – thus not giving the tribal court jurisdiction over Les – a non-member.
Justice Mark Salter partially dissents – saying the decision “may not adequately account for the United States Supreme Court’s decisions involving the assertion of tribal jurisdiction over non-Indians.”
Justice Scott Myren also wrote a dissent – saying the case should be returned to state court so a proper review can be done.
